Henderson v. Stephens

Filing 4

MEMORANDUM AND ORDER 1. This federal habeas corpus proceeding is DISMISSED as successive anduntimely. 28 U.S.C. § 2244(b); 28 U.S.C. § 2244(d).2. A certificate of appealability is DENIED.The Clerk shall send a copy of this order to the petitioner and to the Office ofthe Attorney General for the State of Texas, 300 15th Street, Austin, Texas 78701.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LeROY HENDERSON,
TDCJ #834622,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO. H-14-0952

MEMORANDUM AND ORDER
The petitioner, LeRoy Henderson (TDCJ #834622), is a state inmate
incarcerated in the Texas Department of Criminal Justice - Correctional Institutions
Division (collectively, “TDCJ”). Henderson has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 to challenge the legality of his confinement [Doc. #1].
He has also filed a memorandum in support of his claims [Doc. #2]. After reviewing
the pleadings as required by Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court concludes that this case must be dismissed for
reasons set forth below.

I.

BACKGROUND
A.

Litigation History

Henderson has a long history of state and federal challenges to the criminal
judgments and sentences for which he is now incarcerated. Following a joint trial, a
jury convicted Henderson of committing aggravated sexual assault of his
granddaughter and sexual assault of his other granddaughter. State v. Henderson,
Nos. 763935; 763936 (263rd Dist. Ct., Harris County, Tex. June 25, 1998). The trial
court sentenced Henderson to serve concurrent terms of 50 years and 20 years
imprisonment with respect to the criminal convictions. The Court of Appeals for the
Fourteenth District of Texas affirmed the trial court’s judgment. Henderson v. State,
Nos. 14-98-00763-CR & 14-98-00764-CR; 2000 WL 232013 (Tex. App. Houston
[14th Dist.] Mar. 2, 2000, pet. granted). Henderson’s petition for discretionary review
(“PDR”) was initially granted on October 4, 2000; however, it was subsequently
dismissed, as improvidently granted, on May 1, 2002. See Texas Court of Criminal
Appeals Website, http://www.cca.courts.state.tx.us. The Court denied Henderson’s
motion for rehearing on June 12, 2002, and Henderson did not file a petition for a writ
of certiorari with the United States Supreme Court.
On July 11, 2003, Henderson filed a state application for a writ of habeas
corpus challenging the state court convictions. See Harris County District Clerk
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Website, http://www.hcdistrictclerk. The Court of Criminal Appeals denied the
application, without a written order, on September 24, 2003. Ex parte Henderson,
WR 56,883-01 (Tex. Crim. App.), http://www.cca.courts.state.tx.us. Henderson filed
a second state habeas application (WR 56,883-02) which the Court of Criminal
Appeals denied on November 10, 2004.
Henderson filed a federal petition for a writ of habeas corpus challenging the
sexual assault conviction (cause no. 763936) on January 1, 2005. Henderson v.
Dretke, Civil No. H-05-0103 (S.D. Tex. 2005). Henderson contended that he was
innocent and that his granddaughter gave perjured testimony. He attached affidavits
in support of his argument and alleged that they had only recently become available
to him. On July 13, 2005, the district court granted the respondent’s motion for
summary judgment and dismissed the petition as time-barred pursuant to 28 U.S.C.
§ 2244(d). Id. The Court rejected Henderson’s argument that he was entitled to
tolling on the basis that the exhibits were not previously available to him. In doing
so, the Court observed that the affidavits were not “new.” Id. [Doc. #11, p. 7].
Henderson did not file an appeal.
Henderson filed a different federal habeas petition, challenging the aggravated
sexual assault conviction (cause no. 763935), but he subsequently filed a motion for
voluntary dismissal to allow him to exhaust state court remedies. On September 14,
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2005, the district court granted the motion and dismissed the petition, without
prejudice. Henderson v. Dretke, Civil No. H-05-1072 (S.D. Tex.). On November 28,
2005, Henderson filed two more state writ applications with the Harris County District
Clerk. http://www.hcdistrictclerk. The Court of Criminal Appeals dismissed both
applications as successive pursuant to § 4 of article 11.07 of the Texas Code of
Criminal Procedure. Ex parte Henderson, WR 56,883-03 & WR 56,883-04 (Tex.
Crim. App.), http://www.cca.courts.state.tx.us..
Henderson filed his next federal petition for a writ of habeas corpus on
February 6, 2006. Henderson v. Quarterman, Civil No. H-06-0605 (S.D. Tex.). He
again asserted that he was wrongfully convicted based on the false testimony of the
victims. Id. [Doc. #14, p. 3]. The district court granted the respondent’s dispositive
motion and dismissed the petition as successive and time-barred. Id. [Doc. #16]. No
appeal was filed.
Henderson filed another federal habeas petition which was summarily dismissed
for lack of jurisdiction because it was a successive filing which the Court of Appeals
for the Fifth Circuit had not authorized under the provisions of 28 U.S.C. § 2244(b).
Henderson v. Quarterman, Civil No. H-09-0644 (S.D. Tex.). The Fifth Circuit denied
Henderson’s petition for a certificate of appealability challenging the district court’s

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decision. Henderson v. Quarterman, No. 09-20189 (5th Cir. Sept. 9, 2009). The
Fifth Circuit denied Henderson’s motion for reconsideration on October 13, 2009. Id.
Henderson filed yet another federal habeas petition which was dismissed for
lack of jurisdiction because it was successive and lacked the requisite authorization
from the Fifth Circuit. Henderson v. Thaler, Civil No. H-11-2354 (S.D. Tex.). No
appeal was filed. Two more federal habeas petitions filed by Henderson were also
dismissed. Henderson v. Thaler, Civil No. H-12-0259 (S.D. Tex.) (successive);
Henderson v. Thaler, Civil No. H-12-0243 (S.D. Tex.) (successive and time-barred).
B.

The Pending Petition

Henderson now seeks a federal writ of habeas corpus to challenge both his
sexual assault conviction and his aggravated sexual assault conviction. In support of
the petition, Henderson contends that he is actually innocent of the crime for which
he was convicted and that the prosecutor failed to show the jury that Henderson’s
DNA was present in the rape kit. He contends that the prosecutor violated his rights
because the prosecutor did not inform the defense that there was no physical evidence
in the raped kit which implicated him. Henderson also complains that he was not
aware of the absence of evidence until someone mailed him the results of the rape kit
tests.

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II.

DISCUSSION
A.

Statute of Limitations

Henderson’s habeas petition is subject to the Anti-Terrorism and Effective
Death Penalty Act (“the AEDPA”) provisions which include a one-year statute of
limitations. 28 U.S.C. § 2244(d); Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir.
1998). The AEDPA’s limitation provisions are set forth in the following statutory
language:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
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or claim is pending shall not be counted toward any period of limitation under
this subsection.
28 U.S.C. § 2244(d)(1)(2).
Henderson’s conviction became final on or about September 10, 2002, 90 days
after the Court of Criminal Appeals denied his motion for rehearing on June 12, 2002.
See Sup. Ct. R. 13.1 (West 2002) (petition for writ of certiorari must be filed within
ninety days). Henderson filed his first state application for a writ of habeas corpus on
July 11, 2003, more than ten months after the conviction became final. The state
application was denied on September 24, 2003. Henderson filed his first federal
petition more than fifteen months later on January 1, 2005, and it was dismissed as
untimely under 28 U.S.C. § 2244. Henderson’s subsequent state habeas applications
were filed well after the AEDPA one-year limitations period had elapsed.
Consequently, those applications do not toll the limitations period. Richards v.
Thaler, 710 F.3d 573, 576 (5th Cir. 2013) (citing Scott v. Johnson, 227 F.3d 260, 263
(5th Cir.2000)). None of Henderson’s prior federal habeas petitions have any tolling
effect on the AEDPA statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82
(2001); Mathis v. Thaler, 616 F.3d 461, 473 (5th Cir. 2010).
Henderson’s federal habeas corpus petition before this Court was executed on
April 9, 2014, and therefore handed over to prison authorities for mailing to the Court

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no earlier than that date.1 Thus, his pending petition is barred by the governing statute
of limitations because it was filed more than one year after the challenged convictions
were final. See 28 U.S.C. § 2244(d)(1)(A). Henderson acknowledges that his petition
is untimely but argues that he is entitled to equitable tolling because the rape kit
evidence was not available to him at the time of his trial. [Doc. # 1, at 9].
In a recent opinion, the United States Supreme Court has held that a claim of
actual innocence could be a basis for equitable tolling. See McQuiggin v. Perkins, 133
S.Ct. 1924 (2013). However, the high court also stated that a petitioner asserting
actual innocence must present new evidence in support of his claim and “must show
that it is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.” Id. at 1935 (citing Schlup v. Delo, 513 U.S., 298, 327
(1995)). Henderson does not present any report or test results but only relies on his
unsupported statement that the rape kit contained no DNA evidence which implicated
him. This conclusory allegation is not sufficient to establish that he would not have
been convicted had the rape kit been admitted. Murphy v. Dretke, 416 F.3d 427, 436
-437 (5th Cir. 2005) (citing Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990)
(holding petitioner's conclusory allegations failed to establish valid ineffective

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Under the mail-box rule, courts treat the date a pro se prisoner deposits a federal habeas
corpus petition in the mail as the filing date. See Fisher v. Johnson, 174 F.3d 710, 712 n.8
(5th Cir. 1999) (citing Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per curiam)).

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assistance of counsel claim); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983)
(reemphasizing that “mere conclusory allegations do not raise a constitutional issue
in a habeas proceeding”)). Thus, there is no objective evidence in the record. More
importantly, the fact that the rape kit may not have contained Henderson’s DNA is not
proof that there was no sexual assault. See Holland v. Anderson, 583 F.3d 267, 279
(5th Cir. 2009); McAffee v. Procunier, 761 F.2d 1124, 1127 (5th Cir. 1985) (absence
of “seminal stains, spermatozoa, or blood stains” in rape kit “did not prove, as
[appellant] argues, that no rape occurred.”). Consequently, Henderson’s claim of
actual innocence is unavailing because he presents no newly discovered evidence
which would undermine this Court’s confidence regarding the state district’s findings
of guilt. McQuiggin, 133 S.Ct. at 1936-37 (citing Schlup, 513 U.S. at 316).
In addition to failing to offer proof that he is innocent of sexually assaulting his
granddaughters, Henderson fails to demonstrate that he was diligent in seeking the
evidence which allegedly supports his claim. To qualify for equitable tolling, the
petitioner must show that: “(1) he pursued habeas relief with ‘reasonable diligence,’
(2) some ‘extraordinary circumstances’ stood in his way and ‘prevented’ timely
filing.” Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013). Henderson has
failed to show that he made any diligent effort to obtain the rape kit even though he
has had an opportunity to explain why his petition is not barred by 28 U.S.C.
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§ 2244(d). Moreover, he has been previously notified on two occasions that his
challenges to the 1998 state court convictions are time-barred. See Nos. H-06-0605;
H-05-0103. Therefore, his habeas petition must be dismissed as untimely under 28
U.S.C. § 2244(d).
B.

Successive Petition

In addition to being untimely, this case is subject to the AEDPA’s bar against
successive habeas petitions, codified as amended at 28 U.S.C. § 2244(b), which was
enacted to make it “significantly harder for prisoners filing second or successive
federal habeas applications under 28 U.S.C. § 2254 to obtain hearings on the merits
of their claims.” Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999). Before a
second or successive application permitted by this section is filed in the district court,
the applicant must move in the appropriate court of appeals for an order authorizing
the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). If the
pending petition qualifies as a successive writ, this Court has no jurisdiction to
consider it absent prior authorization from the Fifth Circuit.
The Fifth Circuit has recognized that “a prisoner’s application is not second or
successive simply because it follows an earlier federal petition.” In re Cain, 137 F.3d
234, 235 (5th Cir. 1998). Rather, a subsequent application is “second or successive”
when it: (1) “raises a claim challenging the petitioner’s conviction or sentence that
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was or could have been raised in an earlier petition”; or (2) “otherwise constitutes an
abuse of the writ.” Id.; see also United States v. Orozco-Ramirez, 211 F.3d 862, 867
(5th Cir. 2000). The claims referenced in the pending petition could have and should
have been presented previously in Henderson’s earlier habeas corpus proceedings.
Thus, the pending petition meets the second-or-successive criteria.
The issue of whether a habeas corpus petition is successive may be raised by
the district court sua sponte. See Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.
1997). Because the pending petition is successive, the petitioner is required to seek
authorization from the Fifth Circuit before this Court can consider his application.
See 28 U.S.C. § 2244(b)(3)(A). “Indeed, the purpose of [28 U.S.C. § 2244(b)] was
to eliminate the need for the district courts to repeatedly consider challenges to the
same conviction unless an appellate panel first found that those challenges had some
merit.” United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (citing In re Cain, 137
F.3d 234, 235 (5th Cir. 1998)).
The petitioner has not presented the requisite authorization of the Fifth Circuit
Court of Appeals to file a successive petition. Absent such authorization, this Court
lacks jurisdiction over the petition. Id. at 775. Accordingly, the petition must be
dismissed as an unauthorized successive writ. In addition, the petition has previously
been found to be untimely.
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III.

CERTIFICATE OF APPEALABILITY
Because the habeas corpus petition filed in this case is governed by the

AEDPA, a certificate of appealability is required before an appeal may proceed. See
28 U.S.C. § 2253; see Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997).
“This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless
a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals . . . .’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citing 28 U.S.C. § 2253(c)(1)).
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000). The Court concludes that jurists of reason would not debate whether
the procedural ruling in this case was correct or whether the petitioner has stated a
valid claim.

Accordingly, to the extent that one is needed, a certificate of

appealability will not issue in this case.

IV.

CONCLUSION
The Court ORDERS as follows:
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1.

This federal habeas corpus proceeding is DISMISSED as successive and
untimely. 28 U.S.C. § 2244(b); 28 U.S.C. § 2244(d).

2.

A certificate of appealability is DENIED.

The Clerk shall send a copy of this order to the petitioner and to the Office of
the Attorney General for the State of Texas, 300 15th Street, Austin, Texas 78701.
SIGNED at Houston, Texas, on April 21, 2014.

Nancy F. Atlas
United States District Judge

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